And if you reflexively answered, Executive, Legislative, and Judicial, congratulations. You remember more of your junior high civics classes than some of our most prominent public figures.
But, actually, I would suggest a different division. Those are the three branches of government, true. But, in my view, our three types of elected officials are really Policy Making, Ministerial, and Judicial.
On the federal level, we are voting this year for a President, one of our Senators, and our Representive in Congress. These are all, in theory, Policy Making positions.
In Illinois, the Governor and the members of the Illinois House and Senate are the Policy Making officials. Again, in theory, the Governor and the legislature craft the laws under which we live and the budget pursuant to which those laws are implemented. In practice, perhaps, it may seem that legislators exist for the sole purpose of seeking reelection -- automatic in many cases, for incumbents of both parties, since they are unopposed. In some cases, though, incumbents are inconvenienced by challengers on the road to reelection. Sometimes there are open seats. Occasionally legislators die, or retire, or are indicted. Then others must replace them. In these rather rare circumstances, the Democrats and Republicans may both field candidates.
This year, in contested races, though they might be male or female, and though their parents or spouses or children might know them by different names, all Republican candidates are, judging from their opponents' TV commercials and direct mail pieces, named Trump. Similarly, in Illinois, all Democratic candidates, of whatever gender, however they might be known to their friends and in their communities, are, judging from their opponents' TV commercials and mail pieces, named Madigan.
In the 20th House District, where I live, Trump is the Mayor of Rosemont and Madigan is a Chicago firefighter. I thought Trump and Madigan had different jobs, but the mailers I get every day, sometimes three or four a day, suggest otherwise. Millions of dollars are being poured (through a firehose?) into a race for a job that doesn't pay $70,000 a year. So, even if those in most Policy Making offices have little say in actually making policy, control of Policy Making offices is considered very important.
Ministerial offices are offices in the executive branch that aren't Policy Making. In this election all the Ministerial elections are for county offices -- Clerk of the Circuit Court and State's Attorney being the two prominent ones.
Ministerial officials do not make laws; rather, their functions are defined, often minutely, by statute. A State's Attorney has some discretion, under the law, to decide which crimes to prosecute in a specific case, and that has given rise to confusion, and argument, over the extent of that discretion. Discretion exercised too broadly can effectively rewrite, or even repeal, whole sections of the Criminal Code without the actual input of the Policy Making elected officials. This may be acceptable to some Policy Making elected officials, who are thereby spared the embarassment of having to take a position on potentially controversial issues -- and who can thereby have Someone To Blame if voters become upset enough to threaten their own reelections.
The good-government types, the BGA and the like, look at Ministerial Offices as fertile fields for cost-cutting and consolidation. Thus, for example, the recent merger of the offices of Recorder of Deeds and Cook County Clerk was hailed by good-government types as a Good Thing.
But the good-government types make these assessments without proper consideration of the unintended consequences of such mergers: They reduce the already fleeting opportunities for the not-independtly wealthy to begin the ascent of our own cursus honorum. The Pritzkers and Rauners and Trumps of the world can buy their way into public life -- but others less fortunate could use a good track record in these lower-level, Ministerial offices in order to come to the favorable attention of the public and thereby have real hopes to advance up the ladder into prominent Policy Making posts.
That was certainly the goal of outgoing Clerk of the Court Dorothy Brown---to grasp another rung up the ladder of political success---but it was a goal she never achieved. Why? I believe it was because she was always looking for that next job, and therefore never devoted herself sufficiently to the duties of the office she held. With her departure, we may finally behold a future without carbon paper -- if the courts ever fully reopen.
Policy Makers should have big, sweeping plans and ideas even if, in practice, too many aren't told what their big plans and ideas are until the last few days of the legislative session. Ministerial office holders may have big, sweeping plans, too, but they are, or are supposed to be, irrelevant to the discharge of their duties.
Big, sweeping plans and ideas are potentially harmful to Judicial officials: Judges too strongly tied into their well-devloped world views might feel tempted to view, and fit, the facts of the cases before them into their world-views.
Judges should not have empty minds -- they may well cultivate, as other citizens do, an overall world view -- but they must be able to maintain open minds as they hear cases. If Policy Makers have an expansive, macro view of the world, judges need to cultivate a focused, micro view.
I have often argued that it should usually make no difference to the result if the judge is a "progressive" or a "conservative" or even a Trotskyite, as long as are each faithful to their judicial oaths. And this is certainly true for simple questions -- was the car making the left turn at fault? -- and many others, less simple -- was the notice given in the required form? Was the suit filed within the statute? Depending on their philosophical outlook, not every judge will be equally pleased with the result -- that's human nature -- but, when a decision must be made, it should be made consistently.
But there's a reason why the unofficial motto of the legal profession is, "It depends."
Sometimes a judge must figure out which of several potential statutes apply. And there may be compelling reasons supporting the application of each of these. Choosing from among these competing strands of the law would be an illustration of judicial discretion -- significant autonomy, but case specific.
Even when the choices are narrowed, and the apparently proper statute identified, there may not always be only one right answer. This was more obvious when I was a young lawyer: We often used research aids called books, like the old annotated statutes. When reviewing the annotations under any given statute, we might find one list of a dozen or more cases where the statute indicated one result and, immediately following, an equally long list of cases, equally valid, suggesting just the opposite. For all their technological advances Lexis and Westlaw have never quite duplicated the contradictions that can be observed by the Mark One Eyeball looking at facing pages in a book. The equities of the case may suggest that this line of cases should apply, the circumstances of the case may suggest the proper application of that line of cases. A carefully crafted order pulls all the pieces together and resolves the controversy -- and then the Appellate Court comes along and bollixes the whole thing up.
Or any number of other possibilities. If results were always cut-and-dried, we could just get an app for that. Plug, chug, and enter the data for the next.
Sometimes the best result may be not to decide, but to guide the parties to a settlement that all can live with. Zero-based discovery might be one tool for judges to preside and guide a civil case to a reasonabe solution.
For the Judicial official (unless that Judicial official is on the Illinois Supreme Court, in which case he or she may have some Policy Making responsibilities, especially if he or she serves long enough to be Chief Justice), it is only the parties before the bench that should matter in any given case. It is the narrowest view. The Ministerial official should not be particularly concerned with individuals, but with processes and implementation of the controlling stutory plan. The Ministerial view should be practical and prosaic. Poetry and vision are reserved for the Policy Maker, who should take the broadest possible view. Individual cases may illustrate a need or a problem, but the individuals are props in service of a larger vision.
A great Judicial official might also be a great Policy Maker, and vice versa, but that person would have to bring very different approaches to these very different responsibilities.
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